Summary
In F.G.L. Knitting Mills, the Court denied appellant's motion to add a new affirmative defense two days before jury selection was to begin; the court found no reasonable excuse for the delay because the facts on which the new defense was based had been known to the defendant from the outset (supra, at 534).
Summary of this case from Prince v. O'BrienOpinion
March 15, 1993
Appeal from the Supreme Court, Kings County (I. Aronin, J.).
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The court's denial of the motion of 1087 Flushing Property, Inc., to amend its answer was not an improvident exercise of discretion. This Court has consistently maintained that "'while leave to amend a pleading shall be freely granted (see, CPLR 3025 [b]), a motion to amend is committed to the broad discretion of the trial court (see, Edenwald Contr. Co. v. City of New York, 60 N.Y.2d 957; Kramer Sons v. Facilities Dev. Corp., 135 A.D.2d 942; Fulford v. Baker Perkins, 100 A.D.2d 861), and the resulting determination "will not lightly be set aside" (Beuschel v. Malm, 114 A.D.2d 569)'" (Citrin v. Royal Ins. Co., 172 A.D.2d 795, quoting Ross v. Ross, 143 A.D.2d 429). In reviewing the exercise of its discretion, we look to those factors which the Supreme Court must consider in rendering its determination. The court must consider whether there has been a gross delay in asserting the amendment and, where the action has long been certified ready for trial, to rule with caution and circumspection (see, Pellegrino v. New York City Tr. Auth., 177 A.D.2d 554, 557). Furthermore, "[t]he court will also note how long the amending party was aware of the facts upon which the motion was predicated, and whether it offers a reasonable excuse for its lengthy delay" (Pellegrino v. New York City Tr. Auth., supra, at 557, citing Balport Constr. Co. v. New York Tel. Co., 134 A.D.2d 309; see also, Mawardi v. New York Prop. Ins. Underwriting Assn., 183 A.D.2d 758). In this case, the appellant moved to amend its answer so to assert an affirmative defense two days prior to jury selection and over one year after the case had been placed upon the trial calendar. Compounding the inherently questionable nature of such motion practice, the lease provision upon which the prospective affirmative defense is based has been known to the appellant since the very inception of this action. Significantly, the appellant has failed to proffer an acceptable excuse for this delay. Moreover, since the plaintiffs have prepared their respective cases in response to the original answer, they would suffer prejudice by the late addition of this defense theory (see, Mawardi v. New York Prop. Ins. Underwriting Assn., supra). Accordingly, the court did not err in refusing to permit the requested amendment.
Similarly devoid of merit is the cross motion for summary judgment by Dandee Creations, Ltd. Indeed, although the court improperly relied upon the doctrine of laches in denying the cross motion, the existence of triable issues of fact mandates the denial of summary judgment (see, Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395). Bracken, J.P., Eiber, Ritter and Santucci, JJ., concur.